I'm Giancarlo Enrico S. Pozon, a Wushu instructor, investor and Barrister... That's right, Barrister; I graduated from law school and took the Bar Exams, now I'm waiting for the results. I created this blog to make Philippine Law easy to understand for the average person. It's all about free legal advice. There are many law blogs. But the problem is that many of them are written for lawyers and law students. They use words that can't be understood by ordinary people.
Many lawyers, judges and law students consider themselves as superior to most human beings because of their knowledge of the law. It bothers me since the law is supposed to serve society. Since the law is meant to serve society as a whole, it is important that is must be understood by everybody.
This does not mean that we should all become lawyers. It means that although law is a highly specialized profession, the first duty of everybody in this profession is to make the law understandable to all; that's why all these articles are free legal advice.
Like I said, this blog is about law -but it's for the ordinary people, not the lawyers. It's for the ordinary folk so they will know what is good and bad for them, and that making them aware of the law will help us all improve society as a whole. This is free legal advice for everybody!
Malicious Prosecution in the Philippines takes two forms: civil and criminal
Malicious Prosecution in a Criminal Case
It isn't a crime per se. However, it is penalized with damages. To prove that malicious prosecution exists, the following elements must be present:
1.) The defendant was the prosecutor or offended party in a criminal case filed against the plaintiff;
2.) The case was filed without probable cause (read: flimsy or insufficient evidence;)
3.) The defendant filed the criminal case out of legal malice and sinister motives; and,
4.) The plaintiff was acquitted (Tan vs. CA, 131 SCRA 397.)
Malicious Prosecution inf a Civil Case
The same case also outlined the requisites of malicious prosecution in a civil case. These are:
1.) The defendant had filed a civil case against the plaintiff before;
2.) The defendant was motivated by sinister motives or ill-will;
3.) The case was dismissed for being baseless, unfounded, malicious or lacking in merit; and,
4.) The plaintiff suffered damage or injury because of the civil case the defendant filed against him.
Note: the case doesn't necessarily become a malicious prosecution case if the suit was merely filed. If a case of malicious prosecution is filed while the previous case is still in court, the malicious prosecution case will be dismissed because it is considered premature. Also, if there is not proof of bad faith or evil motives during the malicious prosecution case itself the plaintiff will not be entitled to moral damages.
There is also the concept of damnum absque injuria to consider. If damage was suffered because of the exercise of the legal right of another person, that other person will not be liable to pay damages.
7 comments:
Hi, I'm Troy. Can you consider the filing of criminal case against me is malicious, because it was dismissed by the fiscal for lack of probable cause?
Thanks,
Hello Troy,
Sorry for the late reply. Yes, it is malicious.
Hi Mr. Pozon this Allan, i have a question po.. Here is the scenario, what if the original case had a probable cause during the fiscal level but was dismissed by the court? Can you still file Malicious Prosecution? Thanks in advance..
Sorry for the very late reply, Allan. I'm taking this year's Bar exam. A dismissal amounts to an acquittal.
I am Elsa. A case of Malicious mischief filed against us was already dismissed by the fiscal for lack of probable cause. However the complainant still file a motion for reconsideration. Can I already sue our complainant for malicious prosecution?
Hello po. If the case was dismissed out of no probable cause and the complainant is not the one who plotted the case and the complainant is willing to cooperate to who made him/her believed that we comitted the crime. Can we file a case against the other person who behind the malicious case?
Good Eve, if the case is dismissed for lack of evidence and that as defendant, plaintiffs were unknown to her in the first place, can malicious prosecution prosper?
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